                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                       June 26, 2002 Session


                    ROBERT FRED JONES, ET AL. v. VICK IDLES

                     Appeal from the Circuit Court for Anderson County
                No. 98LA0255 William E Lantrip, Chancellor, by Interchange

                                        FILED JULY 30, 2002

                                   No. E2001-02833-COA-R9-CV




CHARLES D. SUSANO, JR., dissenting.


        I cannot concur in the majority’s decision to affirm the trial court’s judgment granting the
original plaintiff a new trial.

         It is clear that the Tennessee Constitution guarantees the right of trial by jury where, as here,
a litigant in a tort action seeks unliquidated damages. See Tenn. Const. art. I, § 6 (“That the right
of trial by jury shall remain inviolate,...”). This means that, if a jury returns a verdict in favor of a
party and the trial judge subsequently finds that the verdict is not contrary to the weight of the
evidence, and the verdict is otherwise free of reversible legal errors, the successful litigant has a
constitutional right to that jury verdict. To suggest otherwise is to effectively deny the jury-trial right
so clearly set forth in the Tennessee Constitution.

         In the instant case, the trial court apparently perceived that it disagreed with the jury’s verdict
in favor of the defendant on the original claim of the plaintiff. I disagree with this perception. While
the trial court would have assigned a lesser degree of fault to the plaintiff than did the jury, i.e., 50%
instead of 90%, this does not mean that it legally disagreed with the jury’s verdict for the defendant
on this claim. On the contrary, I believe the trial court agreed with the jury verdict for the defendant
and that this agreement required – as mandated by the constitutional requirement that the right to
trial by jury “remain inviolate” – that the trial court deny the plaintiff’s request for a new trial.

        The concept of the trial court as “the thirteenth juror” has been embedded in our
jurisprudence for many years. Tate v. Gray, 36 Tenn. 591, 594-95 (1857); East Tennessee, V. &

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G. Ry. Co. v. Mahoney, 89 Tenn. 311, 15 S.W. 652, 654 (Tenn. 1890); Baugh v. Nashville, C. &
St. L. Ry. Co., 98 Tenn. 119, 38 S.W. 433, 433-34 (Tenn. 1897); Nashville, C. & St. L. Ry. Co. v.
Neely, 102 Tenn. 700, 52 S.W. 167, 168 (Tenn. 1899); Chattanooga Electric Ry. Co. v. Finney, 105
Tenn. 648, 58 S.W. 540, 540-41 (Tenn. 1900). However, interestingly enough, the term “thirteenth
juror” seems to have been first verbalized by the Supreme Court in the 1904 case of Cumberland
Telephone & Telegraph Co. v. Smithwick, 112 Tenn. 463, 79 S.W. 803 (1904):

                     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.

Id., 79 S.W. at 804.

        The cases addressing the trial court’s role as the thirteenth juror have repeatedly focused on
the role of the trial court with respect to the jury’s verdict. The obligation imposed on the trial court
is to independently weigh the evidence in order to determine whether, in the judgment of the trial
court, the verdict is contrary to the weight of the evidence. Ridings v. Norfolk Southern Ry. Co.,
894 S.W.2d 281, 288 (Tenn. App. 1994); State v. Moats, 906 S.W.2d 431, 433 (Tenn. 1995);
Holden v. Rannick, 682 S.W.2d 903, 906 (Tenn. 1984); Grissom v. Metro. Gov. of Nashville, 817
S.W.2d 679, 683-84 (Tenn. App. 1991); Sherlin v. Roberson, 551 S.W.2d 700, 701 (Tenn. App.
1976). See also Tenn. R. Civ. P. 59.06 (“If the trial court grants a new trial because the verdict is
contrary to the weight of the evidence,...”). If the court determines, as a result of its independent
review of the evidence, that the verdict is contrary to the weight of the evidence, it is duty-bound to
grant a new trial.1 If, on the other hand, the court finds that the preponderance of the evidence
supports the jury’s verdict, it is, as previously stated, bound by constitutional mandate to approve
the verdict and decree accordingly.

      In McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992), the Supreme Court adopted modified
comparative fault. The crux of the court’s holding is stated thusly:

                     We therefore hold that so long as a plaintiff’s negligence remains less
                     than the defendant’s negligence the plaintiff may recover; in such a



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             The trial court has other op tions on the issues of additur and rem ittitur but those issues a re not before us in
this case.

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                case, plaintiff’s damages are to be reduced in proportion to the
                percentage of the total negligence attributable to the plaintiff.

Id. at 57. By way of an appendix in McIntyre, the Supreme Court set forth a jury charge to be
utilized “until...the Tennessee Judicial Conference Committee on Civil Pattern Jury Instructions
promulgate[d] new standard jury instructions....” Id. at 58. As stated by the Supreme Court, the
charge was to include the following:

                If you find from all the evidence that the percentage of negligence
                attributable to plaintiff was equal to, or greater than, the percentage
                of negligence attributable to defendant, then you are instructed that
                plaintiff will not be entitled to recover any damages for his/her
                injuries.

Id. at 59. The said Tennessee Judicial Conference Committee subsequently adopted a jury charge
on the subject of comparative fault. As presently constituted, that charge includes the following:

                A party claiming damages will be entitled to damages if that party’s
                fault is less than 50% of the total fault in the case. A party claiming
                damages who is 50% or more at fault, however, is not entitled to
                recover any damages whatsoever.

T.P.I. 3 - CIVIL No. 3.50. Therefore, if a claimant is found by the jury and the trial judge to be
“50% or more at fault,” he or she has failed to establish a right to recover and the jury’s verdict
denying a recovery should be approved by the lower court.

        The focus in the instant case is thus on the jury’s verdict – as memorialized in the trial court’s
judgment – finding for the defendant on the plaintiff’s original claim. The jury found for the
defendant on this claim because it found that the plaintiff was 90% at fault. In other words, the jury
found that the plaintiff was “50% or more at fault.” It seems to me that it is immaterial whether the
trial court found the plaintiff to be 50% at fault, or to be at some higher percentage of fault. This is
because the result would have been the same – the trial court would, in effect, have agreed that the
plaintiff could not recover. Therefore, as far as I am concerned, the trial court, in legal
contemplation, has agreed with the jury’s verdict – in other words, has agreed that the evidence does
not preponderate against the jury’s determination that the defendant prevails on the plaintiff’s claim.

       The majority opinion correctly quotes from the opinion authored by me in the case of Fye
v. Kennedy, 991 S.W.2d 754 (Tenn. Ct. App. 1998). That opinion, which was recommended for
publication by the Supreme Court, in turn correctly quotes from the case of Lee v. Melson, 54 Tenn.
App. 53, 387 S.W.2d 838 (1964):

                The guiding principle is fairness to both parties. A verdict tainted
                with error or confusion ought not to stand. On the other hand, the


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                  parties are entitled to only one day in court. Once a party has been
                  accorded a fair trial on the merits, unaffected by errors of law, he is
                  not entitled to another trial merely because another party to the suit
                  has been granted a new trial to reverse an error peculiar to him.

387 S.W.2d at 841. I believe Lee remains good law. The plaintiff in the instant case has already had
his “one day in court.” That day did not go well for the plaintiff, as demonstrated by the jury’s
finding that he was 90% at fault. Under the circumstances of this case, there is simply no reason to
have another trial on the plaintiff’s original complaint. Furthermore, and more important, a new trial
for the plaintiff on his original claim against the defendant would deprive the defendant of that to
which he is constitutionally entitled.

        I disagree quite strongly with the majority’s finding that there are “complicating issues of
comparative fault,” quoting from footnote 10 to the Fye opinion. Fye, 991 S.W.2d at 761 n.10.
Contrary to the majority’s opinion, the defendant is not seeking a Fye-prohibited reallocation of
fault. The jury allocated 100% of fault in the first case; and the jury in the new trial will be required
to allocate 100% of fault at that trial. I do agree, as the majority asserts, that

                  [t]o accept Defendant’s position would result in two separate trials
                  with two separate juries with two separate verdicts each allocating
                  fault in the same case to the same parties. Such a procedure would
                  lead to the likely, if not certain, result that the total fault allocated to
                  the parties by the two juries in their two separate verdicts in the same
                  lawsuit would be in excess of 100%.

I see nothing wrong if this be the result. In my judgment, it matters not that the allocation of fault
may be different in the two trials or that, when viewed together, the fault in the two trials may exceed
100%. What matters is that 100% of the fault be allocated in each trial. This will happen in the
retrial of the defendant’s suit against the plaintiff because the trial judge in the subsequent trial is
required to see that it happens. It has already happened in the first trial.

        I find nothing in Fye that compels the majority’s decision to grant the plaintiff a new trial on
his original complaint. I believe the statement in Fye,2 upon which the majority relies, must be read
in the context of the facts in Fye, i.e., a single claim by a passenger against the driver of the vehicle
in which the passenger was riding as opposed to the facts of the instant case, i.e., competing claims
by the drivers of the two vehicles involved in the accident. See National Life Accident Ins. Co. v.
Eddings, 188 Tenn. 512, 522-23, 221 S.W.2d 695, 699 (1949) (quoting Chief Justice Marshall in
Cohens v. Commonwealth of Virginia, 19 U.S. (6 Wheat.) 264, 399, 5 L. Ed. 257, 290 (“‘It is a
maxim not to be disregarded that general expressions, in every opinion are to be taken in connection
with the case in which those expressions are.’”). Furthermore, had the trial court denied the original


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          “Under Turner, a trial judge, who, in his or her role as the thirteenth juror, cannot approve some part of the
jury’s determination with respect to comparative fault is limited to granting a new trial.” Fye, 991 S.W.2d at 762.

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plaintiff a new trial, as I believe it should, there would have been nothing in that act that could be
construed as a reallocation of fault. Fye is simply no authority for the majority’s decision in this
case.

        Comparative fault did not create the possibility of facially inconsistent verdicts where one
party is granted a new trial on one claim and another party is denied a new trial on his or her
competing claim. Such verdicts could have occurred, and almost certainly did occur, following the
adoption of the edict in Lee in the days before comparative fault.

       I respectfully dissent. I would state further that I believe this issue is a significant one that
should be resolved by the Supreme Court. Accordingly, I encourage that court to grant permission
to appeal if a Tenn. R. App. P. 11 application is filed.



                                                       _______________________________
                                                       CHARLES D. SUSANO, JR., JUDGE




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